Could a South Carolina deputy coroner also sit on county council in 1995?

Official title

Concerning whether a dual office holding situation exists if  a deputy coroner simultaneously serves as a member of county council.

Requester

The Honorable Grady A. Brown, Member, House of Representatives

Plain-English summary

A representative asked whether one person could serve as deputy coroner and county council member at the same time. The 1995 informal opinion said most probably not: prior AG opinions treated both positions as public offices for the state constitution’s dual-office prohibition. If the person held one office and then assumed the other, the first was deemed vacant automatically. The person might continue to act as a de facto officer until replaced, and public acts in that capacity remained effective unless a court later declared otherwise.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the letter classify both positions as offices? A: Yes. It relied on earlier AG opinions treating county council member and deputy coroner as offices for dual-office purposes.

Q: Which office became vacant?
A: The one held first, when the person assumed the second office covered by the prohibition.

Q: Were acts taken as a de facto officer void immediately? A: No. The letter said public acts remained effective unless or until a court declared them void or removed the person.

Background and statutory framework

The letter applied Article XVII, Section IA of the South Carolina Constitution and prior AG opinions on each position. It described the automatic vacancy and de facto officer rules using South Carolina decisions.

Citations and references

• Article XVII, Section IA, the state dual-office provision applied in the letter.
• Sanders v. Belue and Walker v. Harris, cited on public office and subsequent de facto service.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-28-1995/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/95june28brown.pdf

Original opinion text

The State of South Carolina

OFFICE OF THEiATTORNEY GENERAL
CHARLES MOLONY C ONDON
AlTORNEY GENERAL

June 28, 1995

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The Honorable Grady A. Brown
Member, House of Representatives
213 N. Main Street
Bishopville, South Carolina 29010
RE: Informal Opinion
Dear Representative Brown:
You have sought an opinion as to whether an individual may serve simultaneously as a deputy coroner and as a member of a county council without violating the dual office holding prohibitions of the South Carolina Cbnstitution. Article XVII, Section IA of the South Carolina Constitution provides that "no person may hold two offices of honor or profit at the same time ... ," with exceptions specified for an officer in the militia, member of a lawfully and regularly organized fire department, constable, or a notary public. For this provision to be contravened, a person concurrently must hold two public offices which have duties involving an exercise of some portion of the sovereign power of the State. Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907). Other relevant considerations are whether statutes, or other such authority, establish the position, prescribe its tenure, duties or salary, or require qualifications or an oath for the position. State v Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980). This Office has advised on numerous occasions that one who would serve as a member of a county council would be an office holder for dual office holding purposes. See, as an example of the numerous opinions, Op. Att'y Gen. dated July 28, 1993, a copy of which is enclosed.

R EMBERT

c. DENN IS BnLDl ~G

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POST 0 FFJCE Box 11549

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COLUM BIA, S.C. 29211 - 1549

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TELEPHONE:

803-734-3970

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F ACSIMILE: 803-253-6283

The Honorable Grady A. Brown
Page 2
June 28, 1995
Similarly, this Office has advised
previously that a deputy coroner would be
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considered an office holder for dual office holding purposes. See Op. Att'y Gen. dated October 13, 1992, a copy of which is enclosed.
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Thus, I am of the opinion that one who would serve simultaneously as a member of a county council and as a deputy coroner would most probably be considered to be holding two offices in violation of the dual office holding prohibitions of the South Carolina Constitution.

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If a person holds one office (deputy coroner, for example) on the date he assumes a second office (county council, for example), both offices falling within the provisions of Article XVII, Section 1A of the Constitution, he is deemed to have vacated the former office. However, that person may continue to perform the duties of the previously held office as a de facto officer, rather than de jure, until a successor is duly selected to complete his term of office (or to assume his duties if the term of service is indefinite). See Walker v. Harris, 170 S.C. 242 (1933); Dove v. Kirkland, 92 S.C. 313 (1912); State v. Coleman, 54 S.C. 282 (1898); State v. Buttz, 9 S.C. 156 (1877). 1 I would advise that any actions taken by a de facto officer in relation to the public or third parties will be considered as valid and effectual as those of a de jure officer unless or until a court should declare such acts void or remove the individual from office. See, for example, State ex rel. McLeod v. Court of Probate of Colleton County, 266 S.C. 279, 223 S.E.2d 166 (1976); State ex rel. McLeod v. West, 249 s:c. 243, 153 S.E.2d 892 (1967); Kittman v. Ayer, 3 Stroh. 92 (S.C. 1848); 67 C.J.S. Officers §276. I trust that the foregoing has satisfactorily responded to your inquiry. Please advise if clarification or additional assistance should be needed. This letter is an informal opinion only. It has been written by a designated Senior Assistant Attorney General and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion.

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A de jure officer is "one who is in all respects legally appointed and qualified to exercise the office." 63 Am.Jur.2d Public Officers and Employees §495. A de facto officer is "one who is in possession of an office, in good faith, entered by right, claiming to be entitled thereto, and discharging its duties under color of authority." Heyward v. Long, 178 S.C. 351, 183 S.E. 145, 151 (1936); see also Smith v. City Council of Charleston, 198 S.C. 313, 17 S.E.2d 860 (1942) and Bradford v. Byrnes, 221 S.C. 255, 70 S.E.2d 228 (1952).

The Honorable Grady A. Brown
Page 3
June 28, 1995
With kindest regards, I am
Sincerely,

l/~f/J·~
Patricia D. Petway
Senior Assistant Attorney General

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Enclosures